The Ninth U.S.
Circuit Court of Appeals held yesterday that a man convicted of drug offenses
who is facing the prospect of deportation is eligible to apply for
“cancellation of removal” notwithstanding that his entry into the United States
was unlawful—a decision based on reasoning that the dissenter termed “rubbish.”

At
issue was the meaning of 8 U.S.C. §1229b(a)(2), which sets forth criteria for
cancellation of removal. Aside from lawful permanent residency for five years
and not having been convicted of an “aggravated felony,” it requires seven
years of continuous residence in the United States “after having been admitted
in any status.”

Reinhardt
observed that when the petitioner was “waved through” at the border, he was
“admitted.”

The
petitioner, Abraham Villalba Saldivar, had entered the United States from
Mexico in 1993. As explained by his attorney, Patrick Valdez, at oral argument
Aug. 2, 2016, Saldivar was then 10 years old, and was a passenger in a car
driven by a person believed to have been a relative who lawfully crossed the
border.

The
boy, however, did not enter lawfully, he conceded.

In
2006, he gained the status of lawful permanent resident. Six years later, he
suffered his convictions in state court for possession of methamphetamine and
possession of paraphernalia used for smoking a controlled substance.

An
immigration judge ruled that when the car was “waved through the border” in
1993, the boy did not gain “any status” because “mistaken admissions do not
confer a status, either permanent or otherwise.”

The
Board of Immigration Appeals affirmed, saying that being waved through “is not
tantamount to admission ‘in any status’ either immigrant or nonimmigrant.”

Reinhardt
Explains

Explaining
the reversal, Reinhardt wrote:

“Because
Saldivar was undisputedly ‘admitted’ in 1993, we must decide whether that admission
was ‘in any status.’ We conclude that it was.”

Pointing
to a 2015 decision in Tula Rubio v. Lynch, he said:

“Only
the Fifth Circuit has previously considered the precise issue before us, and that
court held unequivocally that the statute is unambiguous. We agree with our
fellow circuit and its reasoning.”

The
court there said:

“We…find
it clear that the plain meaning of the phrase ‘any status’ broadly encompasses
all states or conditions, of whatever kind, that an alien may possess under the
immigration laws.”

Because
the phrase is unambiguous, Reinhardt declared, the court is not bound the
dictate of the United States Supreme Court’s 1984 decision in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council Inc. that the Board of
Immigration Appeal’s construction of terms in the Immigration and
Naturalization Act be honored.

Kozinski’s
Dissent

Kozinski
noted that in 2002, the Board of Immigration Appeals held that reference to the
“status” of a person relates to “a certain legal standing, e.g., classification
as an immigrant or nonimmigrant.” That, he insisted, is “the only sensible way
to read” the statute.

He
commented:

“When
an actor says ‘wish me luck’ before an audition, he’s not asking his friend to
wish him both good and bad luck. Or when the best man at a wedding toasts the
newlyweds’ health, he’s not wishing them both good and ill health. Context
makes clear that those terms denote only something positive.”

“Otherwise,
why mention status at all? If Congress intended to grant eligibility for
cancellation of removal to people who deceive the border authorities into
admitting them, it would have put a period after ‘admitted’ in section
1229b(a)(2) and omitted any reference to status.”

His
reference to “rubbish” came after he recited the argument by Reinhardt and by
the Fifth Circuit that it is meaningful that Congress did not specify “lawful”
status. He insisted that interpreting “any status” to mean legal status “ is
not merely a plausible meaning, it is the only plausible meaning.”

“[T]he
majority’s interpretation is profoundly illogical. My colleagues seem to
believe that Congress made an immigration benefit available to someone who
fools the immigration authorities at a border checkpoint, but not someone who
scales a border fence or tunnels under a wall. It’s nonsense to think that
Congress would treat aliens who deceive the immigration authorities better than
those who sneak in hidden in a cargo van. What purpose would such a distinction
serve? This ruling also creates perverse incentives: Potential deportees will
claim, like Saldivar, that they were waved in by a guard regardless of how they
actually entered. Obviously, there would be no record contradicting them, so
the incentive to lie would be powerful and the chance of getting caught nil.

“My
colleagues misread the INA, trample our precedent and turn their backs on
Chevron, all to create a giant loophole that will enable thousands to lie their
way to relief that Congress never intended them to have. The Fifth Circuit got
it wrong and the Ninth now follows them down the rabbit hole. It’s time for
another opinion.”

The
case is Saldivar v. Sessions, No. 13-72643.

Public
records show that on March 29, an Abraham Saldivar, whose age matches that of
the petitioner in the Ninth Circuit case, was sentenced to two years in prison
for possession or ownership of a firearm by a felon or addict.